Thursday, February 17, 2011

[2/18 note: There is some debate whether Portuguese-American Albert Coutinho should be counted as a Latino legislator.]

My last column examined the legal underpinnings of redistricting in terms of suggestions offered by New Jersey’s Latino community. In this column, I break down the numbers behind some of those proposals.

Keep in mind that the key concern raised by testimony at recent public hearings is to increase Latino representation. It currently stands at 6% of the legislature versus 18% of the total population.

One proposed district is based on the premise that the Latino populations of Paterson and Passaic form a joint “community of interest.” The courts have said that keeping communities of interest intact is an important consideration. These communities are not only racial or ethnic. They can be defined as any group of people who have a common political interest (e.g. residents of rural areas or shore towns which have shared policy concerns).

Federal courts generally frown upon barefaced attempts to split or “crack” communities of interest during the redistricting process, although New Jersey’s commission was able to defend the amount of unpacking in 2001. On the other hand, there does not seem to be a strong legal precedent to force mapmakers to redraw districts specifically to increase the size of communities of interest. [The only caveat being that existing majority minority districts must be maintained.]

As for the case of putting Paterson and Passaic into the same district, the proposal fails at a more basic legal level. Before mapmakers can consider “communities of interest,” they must ensure that each district has a relatively equal population and a contiguous border. That means in order to join Paterson and Passaic, mapmakers must include either Clifton or Elmwood Park/Garfield to maintain contiguity. The former district would have 300,116 residents and the latter would have 265,870. Both options are too far above the 219,797 ideal population size to pass legal muster.

Another idea proposed at the hearings is to put Perth Amboy (78% Hispanic) and New Brunswick (50% Hispanic) in the same district. This one is doable only by joining them with East Brunswick, South River, Sayreville, and South Amboy. This district would have a total population of 220,850 – spot-on under the equal population standard – and would meet most standards for compactness. [Of note, it would also require that Carteret and/or Woodbridge be spun off to a district with Union County towns.]

However, the question remains whether this district would enhance Latino representation. In testimony to the Legislative Apportionment Commission, Perth Amboy’s Mayor Wilda Diaz lamented the fact that her district – the 19th – is represented by three white men. She noted that Hispanics make up 31% of the population in this district.

By comparison, the proposed district anchored by Perth Amboy and New Brunswick would be 36% Hispanic. In fact, that’s the highest percentage you can achieve in any of the possible district configurations that include Perth Amboy. So would an increase from 31% to 36% propel more Latinos into the legislature?

Let’s take a look at the current district populations and representation for both African-Americans and Latinos. Currently, 13 New Jersey legislative districts have populations over 20% Hispanic. Latinos hold seats in just 7 of those districts (or 8 if you include Albert Coutinho in the count). It’s a little better – .4. 5 of 7 – in districts with a Hispanic population of 30% or more. However, of the 21 total legislative seats in these districts, Latinos occupy just 6 (or 29%) 7 (or 33%).

By contrast, 12 New Jersey districts have black populations over 20%. African-American legislators hold seats in 10 of those districts (plus another seat in a district with a smaller black population). It’s 6 of 6 in districts with a 30% or greater black population, with African-Americans holding 10 of these 18 seats (or 56%).

Is there a higher threshold of population share for Latino representation in the state legislature than there is for African-American representation? There is currently one majority minority Latino district in the state – Hudson County’s 33rd, with a 54% Hispanic population. It is represented by a Latino and a Latina in the General Assembly, and a white male in the Senate – who also happens to be mayor of a city that is 85% Hispanic.

Therefore, the Hispanic voters in this district appear to have full opportunity to elect candidates of their preferences (noting that federal guidelines do not say that the preference necessarily has to be for someone of the same race or ethnicity). On the other hand, the neighboring 32nd district has a 49% Hispanic population, but is represented by one Latino in the legislature.

What will happen after the new lines are drawn? The wild card in this is the constitutional need to reduce the number of districts touching Jersey City from three to two. Under one scenario, parts of Jersey City would be pulled out of the 32rd, thus requiring a couple of towns, such as West New York and Guttenberg, to move from the 33rd to the 32nd to even out the population. This would make the 32nd a majority minority district, but may cut the 33rd to below 50% Hispanic.

Another scenario would swap North Bergen and Hoboken and pull in a couple of Bergen County towns, ending up with a 33rd district that is more than 7-in-10 Hispanic, while the 32nd would drop to 3-in-10 Hispanic. Which, if either, option would better enhance Latino representation? It’s not clear.

Even if there is a population tipping point, it’s just not possible to draw many – if any – more districts with significantly higher Latino populations. This is due to the geographic dispersion of the state’s ethnic populations. Groups may be concentrated in certain cities and towns, but it is physically impossible to link those towns on a map that can withstand legal scrutiny.

At the Jersey City hearing, Republican Commissioner Bill Palatucci pointedly asked Assemblywoman Annette Quijano how she first won the Democratic nomination for her seat – by receiving the party line or by primarying a sitting legislator. Not surprisingly, it was the former. This exchange illustrates the reality that ethnic representation has as much, if not more, to do with party organization power than it does with the size of ethnic voting blocs at the polls.

African-Americans have demonstrated success at securing party backing in districts where they comprise more than 1-in-5 residents. Latinos have not enjoyed the same level of success. It’s not clear that any potential map configuration can do much to change that.

Tuesday, February 15, 2011

Recent hearings held by the New Jersey Legislative Apportionment Commission in Newark and Jersey City were dominated by concerns of the Latino community. However, the community did not speak with one voice – or at least that voice was somewhat muddled.

One thing the speakers did agree on is that Latinos are under-represented in the Legislature. While Latinos make up 18% of the state population, they only hold 7 8 seats in the legislature (i.e. 6% 7%). By comparison, African-Americans are 15% of the state population and hold 15 legislative seats (or 13%). As a side note, Asians now make up 9% of the state population and hold 2 legislative seats.

While some speakers at these hearings argued for the creation of districts that would increase the Latino proportion of a district’s population, others warned against putting too many Latinos in one district in a way that would dilute their voting power in other districts. Terms like packing, cracking, stacking, and bleaching were tossed about with abandon (Check out this link for a quick overview of these redistricting terms).

We’re still plowing through all the implications of the census data, but it doesn’t seem likely that there is much opportunity for increasing the Latino population in most districts. Moreover, the experience over the last 10 years suggests that the main issue with Latino under-representation may have less to do with district demographics than it has to do with party organization power structure.

One thing made clear by the testimony is that many, if not most, of those who testified are unfamiliar with some key legal – especially Constitutional – provisions. First of all, all districts must be contiguous. In other words, you can’t jump around from town to town to pull together a similar community of interest if those towns aren’t connected by other towns.

Federal law also stipulates that districts must have equal populations, or as nearly equal as practicable. Federal courts have provided guidance for state legislative districts that stipulate the difference between the largest and smallest district can be no more than 10% of the ideal district size. The ideal district size in New Jersey is now 219,797. It’s also important to remember that the equal population number is based on all residents – not just adults or registered voters (although there is some precedent for “moving” institutionalized populations to different districts). [Districts must also be “compact,” but the definition of that is more nebulous.]

New Jersey is also impacted by the federal Voting Rights Act, although not in the same way as many southern states. Recent judicial interpretations of this law as it applies to states like New Jersey requires that districts where a minority group is in the majority must retain that majority. Currently, only two districts seem to meet that criteria – district 28 with a 55% black population and district 33 with a 54% Latino population (although district 32 comes close at 49% Latino).

If one is to stretch the definition to combine both black and Latino populations, then 9 districts could currently be considered majority minority (or 16 if we add Asians to that count). However, federal law indicates that these groups should be treated as separate “communities of interest” to be taken into consideration when drawing up the new map.

Furthermore, while recent judicial decisions suggest that New Jersey cannot dilute the two current majority minority districts, it is not required to create more minority majority districts if – or simply because – the possibility exists to do so.

So the federal guidelines are: New Jersey’s districts must be contiguous; must be roughly within 12,000 or so total residents of the 219,797 ideal district size; and must maintain the two current majority minority districts.

There is one other wrinkle which the commission and those who wish to influence the commission must consider. That is the New Jersey state Constitutional provision to preserve municipal (and county!) boundaries. Basically, this means that Newark and Jersey City may each be divided into two districts because their populations are larger than 219,797. However, recent federal rulings indicate that the map-makers would be unlikely to get away with the current three-way split this time around. The state Constitution also directs that counties should be divided no more than necessary to achieve equal districts. That is, unless further divisions are necessary to comply with the federal directives on district size and contiguity.

These legal requirements may leave the commission with little leeway in deciding how the new district lines may be drawn. And this will have an impact on how much the Latino population can be moved from district to district.

I started by indicating that many of the proposals put forth at the recent hearings would not pass legal muster and that even those that do may not increase Latino representation in the legislature.

This column was the wind-up. In my next column, I’ll throw the pitch and break down some of the possible – and impossible – configurations and their implications for Latino representation in the legislature.

Thursday, February 3, 2011

The New Jersey census data has arrived. Now the process of legislative redistricting can begin in earnest. If you have been following media reports about the process you may think that a number of decisions have already been made. Well, that’s what the 10 partisan commissioners would like you to think. Here’s my take on three items that the media has reported.

1. “The 11th member of the Commission will be Rutgers Professor Alan Rosenthal.” We don’t know that, although it has been reported as a foregone conclusion. The choice of this member is at the sole discretion of Chief Justice Stuart Rabner.

I have had the privilege of working with Professor Rosenthal and there are many reasons why he would be a good choice. He is undoubtedly the nation's foremost expert on state legislatures, and, importantly to this process, is fair-minded.

But there is also a reason why he would not be a good choice. Both political parties are desperate to have the Chief Justice pick him!

Here’s what we do know. Justice Rabner asked both parties to submit a list of potential candidates. The media has reported – repeatedly – that Rosenthal’s name appeared on both lists and therefore he is the likely 11th member. How did they get this supposedly confidential information? It did not come from the Chief Justice.

Both political parties decided to leak this information to the press. And then leak it again in case you missed it the first time. And then finally “admit” it in a public hearing. This has obviously been an attempt to make this choice a fait accompli.

Did any other names aside from Rosenthal’s appear on both lists? I doubt it. In fact, I wouldn’t be surprised if the Democrats and Republicans reached an agreement on this choice before submitting their “independent” lists to Justice Rabner.

At the end of the day, what both sides are most afraid of is the unknown. Alan Rosenthal is a known commodity who has the utmost respect for the job legislators do – “heavy lifting,” as he calls it in one of his books on the subject.

The ultimate irony would be if the 11th member was someone who appeared on neither party’s list. We shall have to wait and see.

2. “According to constitutional guidelines, the populations of each district can be no more than 5% above or below the ideal district size.” Specifically, we have been told that if New Jersey’s ideal legislative district includes 220,000 people, the individual districts must be between 209,000 and 231,000 residents.

That’s not entirely accurate, according to the experts I consulted at the National Conference of State Legislatures. The state Constitution specifies a much broader 20% margin on either side. But this has been overridden by a federal standard allowing for no more than a maximum 10% “range” between the smallest and largest district. However, that federal standard is calculated differently than what the media has been reporting.

For example, if the ideal district size is 220,000, the smallest district on a redrawn map could conceivably be 205,000 and the largest could be just under 227,000. In this instance, the smallest district is actually 6.8% below the ideal size while the largest district is less than 3.2% over. In other words, this map would meet the federal standard because the difference between the largest and smallest district is less than 10% of the ideal district size.

So why is the media reporting that the commission must adhere to a more narrow plus or minus 5% definition? They are getting this information from partisan sources. It’s no secret that both parties have been running preliminary population estimates through their own mapping software to examine all the possible district configurations.

It seems likely that one side has determined that the narrower definition gives them a better chance of getting a map beneficial to their interests. It may just be a minimally better chance, but the stakes are extremely high and the two parties will fight for any advantage. This is possibly why the plus or minus 5% definition has been bandied about.

3. “Newark and Jersey City will be each be divided into two districts.” The state Constitution stipulates how to deal with municipalities whose population is larger than the ideal district size. In practice, this only applies to Newark and Jersey City – the only two municipalities whose population exceeds 220,000.

The constitution provides a formula for determining the maximum number of districts that a town can be split into. Basically, you divide the town population by the ideal district size and then round up to the next whole number. In 2001, both Newark and Jersey City were spread across three districts although the constitutional formula accorded them only two.

That map survived a legal challenge, but more recent rulings by the U.S. Supreme Court suggest it would not pass muster today. So, the media report in this instance is likely true. However, the media has ignored the fact that the Constitutional formula for splitting municipalities also applies to counties. And the 2001 map clearly violated that standard.

For example, Essex County should have been divided into no more than four legislative districts according to the state Constitution. However, its 22 municipalities are spread across seven districts! And they are not alone. Of New Jersey’s 21 counties, seven (Bergen, Mercer, Middlesex, Monmouth, Morris, Passaic, Somerset) include two more districts than they are constitutionally entitled and seven have one more (Atlantic, Burlington, Camden, Cumberland, Gloucester, Hunterdon, Union). Only six counties (Cape May, Hudson, Ocean, Salem, Sussex, Warren) meet the constitutional limitation on dividing county populations across legislative districts.

There are certainly reasons why the partisan commissioners would want to ignore this restriction. It’s a question of power. Most districts are safely drawn for one party and organizational support determines who gets the party’s nomination. Thus, a party organization would want to have a say in the candidate selection process on as many legislative seats as possible. Therefore, adhering to the Constitutional restrictions on dividing counties could limit the commission’s choices in drawing partisan gerrymandered districts and protecting incumbents.

There are also valid legal reasons why the commission could draw up a map that violates the Constitutional requirement on the division of county populations. Among the most significant is the equal size standard. If the commission cannot feasibly draw districts that meet the federal 10% maximum range guideline without violating the county split provision, then the population size standard wins out. We’ll see what the possibilities are as the public gets to pour through the Census data.

In any event, both parties have already acknowledged that the current three-way split of Newark and Jersey City is unacceptable. Given this public admission, expect an interesting legal battle if the commission draws a map that does not adhere to the same requirement regarding counties.